Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Determination of negotiating exclusion is a proper subject for local legislation

By Harvey Randall, Esq.

Determination of negotiating exclusion is a proper subject for local legislation
Mayor of the City of New York v Council of the City of New York, 9 N.Y.3d 23, Court of Appeals

In 2001, the New York City Council adopted two local laws, Local Laws 18 and 19, giving ?uniformed officer? status to individuals employed by the New York City Fire Department as fire alarm dispatchers and emergency medical technicians (EMTs). [A ?uniformed officer? is used to describe a sworn police officer and uniformed employees in the City?s fire, sanitation and correction services.]

The practical effect of these provisions: The Mayor would be required to bargain with unions representing these particular employees, rather than with unions representing the majority of city employees, concerning ?overtime and time and leave rules.?

Local Laws 18 and 19 impacted upon New York?s city-wide collective bargaining ?rule? concerning collective bargaining on ?matters which must be uniform for all employees subject to the career and salary plan, such as overtime and time and leave rules? by legislatively including fire alarm dispatchers and EMS personnel as employees covered by a 1967 Executive Order. The 1967 Executive Order excluded ?uniformed officers? from the benefits ?uniform for all employees? rule. The 1967 Executive Order exception was added to the CBL by local law in 1972. Accordingly, the 2001 local laws made the dispatchers and EMTs, like firefighters, sanitation workers, correction officers and police officers, exempt from the citywide ?uniform? bargaining requirement with respect to negotiating overtime and leave provisions set out in a collective bargaining agreement.

After the Council adopted these provisions over then Mayor Giuliani?s veto, the Mayor sued, challenging the validity of the two local laws. The Mayor argued that a referendum was required in order for these provisions to take effect. The Council prevailed in Supreme Court, the Appellate Division and the Court of Appeals.

The Court of Appeals said the ?local laws are not preempted by State law, and that the Council had the power to enact them without a referendum.?

The Court?s rationale:

In general, labor relations in the public sector in New York State are governed by the Taylor Law, Civil Service Law §§ 200 et seq. But the Taylor Law contains a local option provision, Civil Service Law § 212, which permits local governments to enact their own counterparts to certain sections of the Taylor Law, and thus to displace the Taylor Law to that extent.

New York City exercised this option by adopting a local law known as the Collective Bargaining Law (CBL) (Local Law 53 of 1967), now codified as New York City Administrative Code §§12-301 et seq. On a related matter, at one time there were 35 mini-PERBs; currently only four remain: New York City?s Office of Collective Bargaining, and mini-PERBs for the Town of Hempstead; Suffolk County and Westchester County.

The State statute requires that the local laws be ?substantially equivalent? to the ?provisions and procedures? of the Taylor Law itself (Civil Service Law § 212 [1], [2]). As to New York City, however, the issue of substantial equivalence can be raised only in a declaratory judgment action brought by the Public Employee Relations Board (PERB) in New York County Supreme Court; unless and until such a challenge is brought and upheld, the City counterparts to Taylor Law provisions ?shall be of full force and effect? (Civil Service Law § 212 [2]).

The Court of Appeals said that the regulation of bargaining procedures generally, and specifically the procedure by which bargaining units are determined, is a proper subject of local legislation. The decision notes that:

The Taylor Law [Civil Service Law §206(1)] provides that a local government ?acting through its legislative body, is hereby empowered to establish procedures . . . to resolve disputes concerning the representation status of employee organizations.? While this statute is not directly applicable here ? the City?s Collective Bargaining Law has superseded it ? it refutes the idea that procedures to determine the appropriate unit of bargaining are a subject beyond the reach of a local legislature.

The court?s conclusion: ?Local Laws 18 and 19 are not preempted by the Taylor Law.?

As to the requirement of a referendum for legislation that ?curtails any power of an elective officer,? such a requirement applies only to legislation that impairs a power conferred on the officer as part of the framework of local government. As an example, the Court of Appeals said that a local law limiting the power of New York City?s Mayor to appoint commissioners, or to prepare a budget, or to create or abolish positions within his executive office would require a referendum.

In contrast, said the court,

? a law that merely regulates the operations of city government, in collective bargaining or in some other area, is not a curtailment of an officer?s power and thus a referendum is not necessary to validate the legislative action.

Judge Read dissented. After setting out historic elements in the development of collective bargaining between the City and unions representing City workers, he commented:

As the Mayor laments, Local Laws 18 and 19 have put into play rights and obligations considered settled for nearly 40 years. Indeed, their enactment in 2001 likely signals the demise of the two-tiered system: in 2005, the Council adopted Local Law 56 to list numerous additional job titles in various departments, which the Council unilaterally deemed exempt from the citywide agreement. Because the Taylor Law prohibits the Council from operating as a freelance negotiator at liberty to make concessions on the scope of bargaining at the Mayor?s expense, I dissent.

Full post as published by New York Public Personnel Law on March 25, 2008 (boomark / email).